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-   -   Legalization and Immigration Options FAQ (http://dreamact.info/forum/showthread.php?t=8146)

elihu 08-31-2011 02:03 PM

Re: Legalization and Immigration Options FAQ
No. You actually have to have a bona fide marriage to a U.S. citizen (who himself or herself has been a citizen for more than five years if he or she attained permanent residency by marriage to a U.S. citizen). Getting engaged to a U.S. citizen entitles an individual outside of the United States to a K visa, but the only people allowed to adjust status outside of 245(i) once they are out of status are immediate relatives.

Along the same lines, this is only true of U.S. citizens. Legal residents cannot confer legal status to future spouses who are currently out of status until the legal resident becomes a U.S. citizen.

turmalina 11-29-2012 09:20 PM

Re: Legalization and Immigration Options FAQ
Today, it sparked on me looking through some things online to call the person I hired to help me with my applications because I wanted to clarify things about priority dates. And I think I just lost like 5 months because this person flakes on me.

So basically, I'm confused about this 245(i) thing and how it would help me with this current case (I had applied for status adjustment under my father's employment-based adjustment back in 2001). Can anyone point me to some reliable info about the relation between I-130 petitions for permanent residents for unmarried children over 21 and 245 (i)?

wangll 05-20-2013 01:26 AM

Re: Legalization and Immigration Options FAQ
pingpong, could you switch the title to "The Fix My Individual Immigration Status Thread?"
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zone2oo0 05-20-2013 05:03 AM

Re: Legalization and Immigration Options FAQ
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doykung 10-18-2013 05:41 AM

Re: Legalization and Immigration Options FAQ
Ok ,thank

lawnstarter 06-05-2014 07:52 AM

Re: Legalization and Immigration Options FAQ
As an individual who hasn't had immigration issues I couldn't believe how much of a pain it can be (went through the whole process with an employee). Awesome resource will pass along in the future!

hualun 12-03-2014 11:52 PM

Re: Legalization and Immigration Options FAQ
great info.You're awesome!

Ralphysunsmith 01-08-2015 11:23 AM

Re: Legalization and Immigration Options FAQ
[quote=pingpong abyss;103679]We get a lot of posts in Off Topic and other areas of the board in which people are asking about other options for legalizing their status. I've probably made the same post about marriage, among other things, a bazillion times in the past week, so I figured it might be a good idea if I just made a post that explained all of the options open to dreamers in regards to legalization and, if it comes to it, immigration to another country. I'm trying to make sure I put a source to everything so that you can verify the information for yourself, and if you note a mistake or have another option to suggest, then please post saying so. As you all should now, individual situations may vary and you should always consult a lawyer before attempting any form of legalization or immigration. This is a starting point.

Also, I iz st00pid, so I can't make my post all pretty.

I. Legalization.

We are all hoping for the passage of the Dream Act. However, we do not know when that will happen, and in the meantime, if you have another option to legalize yourself then you should take advantage of it. Below are all (I think) the ways to legalize your status in the US.

A. Bans and unlawful status.

According to the Immigration and Nationality Act 212(a)(9)(B)(ii)(I), any unlawful presence that you accrue while you are a minor is exempt.

" (iii) Exceptions.-

(I) Minors.-No period of time in which an alien is under 18 years of age shall be taken into account in determining the period of unlawful presence in the United States under clause (I)."

However, once you turn 18, you start to accrue presence. By 180 after your eighteenth birthday, you will have acquired a three year ban from the country, which will be initiated once you leave the U.S. Once you have accrued one year of unlawful presence, that will become a ten year ban. If you leave the country while you have the three year ban and attempt to enter within three years, the ban will become a ten year one. If you leave the country with the ten year ban and attempt to enter within ten years, that will become a permanent ban and will not be waivable until you have been outside of the country for ten years.

(i) In general.-Any alien (other than an alien lawfully admitted for permanent residence) who-

(I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States (whether or not pursuant to section 244(e) ) prior to the commencement of proceedings under section 235(b)(1) or section 240 , and again seeks admission within 3 years of the date of such alien's departure or removal, or

(II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien's departure or removal from the United States,is inadmissible. "

If you are not yet 18 1/2, you can leave the country and apply to immigrate here legally and the unlawful presence will not be held against you.

B. Marriage/Engagement.

Scenario 1: I entered without inspection.

Entry without inspection is defined as unlawful entry. This means that, rather than entering the United States on a valid visa, you crossed the border through some other manner. This could include being smuggled over the border and hopping over the fence, among other things. If you entered the country through a border checkpoint, but did so fraudulently, then you are considered to be an overstay for purposes of marriage and will not be included in this category.

If you entered the country without inspection, even if you did so as a minor, then you are not allowed to adjust your status in the U.S. In order to do so, you must leave the country and go through consular processing to get your visa. In order to overcome the ban for unlawful presence, your spouse will have to file a waiver on your behalf, called the I-601 waiver.

Only a U.S. citizen can file a petition for their fiancee, so if you are engaged to a legal permanent resident, then you will have to get married before initiating the process. If you are engaged to a U.S. citizen, then you can file the I-129 (which costs $455), petition for alien fiance.

If you are married to a U.S. citizen or a legal permanent resident, then you can file the I-130 petition for alien spouse. This costs $355. Filing the I-130 means that you will have to wait longer for an interview, but if you want to go faster then, once you have been notified of the receipt of our I-130, you can file the I-129 as well. This will get you a quicker appointment, but once your visa is approved you will have to file adjustment of status when your spouse enters the U.S., form I-485, which costs $1010. Do what you will.

Once your form has been received, you will receive a notice of action, which means it is pending. You might get a couple of these. Then you will get a notice of approval and after that several forms.

DS-3032: This is the choice of agent form, and is used to put the address where everything else in the process will be sent to. If you have a lawyer handling your case, then you can choose them. If not, then you can put down your own address, but if you intend on moving it is better to choose an address of someone you trust so that you don't have to go through shit trying to change your address with USCIS.

Affidavit of support bill, and the affidavit of support form (I-864). In order to have your application approved, your U.S. citizen/LPR fiance/spouse must be able to prove that their income is 125% of the poverty level. There are ways to get around this. If your spouse/fiance does not make that much, then they can get a co sponsor.

Visa application, DS 230, part 1.

After you have sent all of that paperwork to USCIS, they will schedule an interview for you. Normally, you will receive notice of this a couple of months before the date. If you filed a fiance petition, then you will receive an open appointment instead of an exact one. You do not have to leave the country until the time of your interview, BUT your status does not change during this time. You are still eligible to be detained and deported, just like you were before the petition was filed. Once you leave the country for your interview, the ban kicks in, and you cannot return until you have been approved or you will initiate a permanent ban.

Before your interview, you will have to get a medical exam and vaccinations. If you are being sponsored as a fiance, then you don't have to do this until you've been admitted to the U.S., so long as you do it before you file for adjustment of status. You'll get a packet with your exam information, which you'll bring to the interview. Normally you have the exam the day before the interview. Don't open your packet.

Then you will go to your interview. SPOILER ALERT. You will be denied entry, hands down, because of your previous unlawful status. In the interview, inquiries will be made to make sure that the relationship between you and your U.S. citizen/LPR is legitimate and about your past immigration mishaps. After they figure out that you are denied, they will try to find out if you can file a waiver.

The I-601 waiver is not a given. In order to be approved and move on to getting your visa, you have to show that your US citizen/LPR spouse/fiance (not you yourself) would suffer extreme hardship if they were to be separated from you for the length of the ban, or if they were to have to live with you in your home country for the length of the ban. If you have a criminal record or a record of drug use, it's possible that you will be unable to file the waiver until you have been out of the country for three years, but this is up to the interpretation of the consulate.

So, what is extreme hardship? While it may seem impossible emotionally to be separated for a period of ten years, that is a given and is thus not considered extreme hardship. In order to have your waiver approved, your spouse/fiance needs to show that their hardship would be above and beyond that.

FANTASTIC examples of hardship: your US citizen/legal permanent resident has a major condition that prevents them from moving to another country and that makes it to where they absolutely need you here to care from them; your US citizen/LPR has a relative who is inferm, disabled, elderly to the extent that they have to spend at least an hour a day caring for them or most have them under their constant care, and there is no other relative that is able to do this, and because of this constant care the US citizen or LPR would need you to help them take care of things; your country is at war, or some other crazy shit is going down.

GOOD examples of hardship: your US citizen/LPR already has a kid from a previous relationship and due to custody issues would be unable to move abroad with the child, and would be unable to be separated from you because the child has grown emotionally attached to you; due to a medical condition (like a major surgery with a long recovery period) that your US citizen/LPR has, it would be hard but not impossible for them to move out of country and they need you to care for them; your spouse/fiance has a relative who is usually able to take care of himself but occasionally needs a lot of extra help, and they would need your help during those times; your spouse/fiance is providing long term major financial support to a relative of theirs; your country is about to go to war, some shit is about to go down their, or it has a history of oppression which would affect your spouse/fiance.

OKAY examples of hardship: your spouse/fiance has a child from another relationship who does not have much of a relationship with you yet, and whose other parent would not let your spouse/fiance move abroad with; medical condition on part of your spouse/fiance that would make it inconvenient to leave US; clinical depression on part of spouse/fiance caused by immigration problems; you and your spouse/fiance have kids together and your country has bad public health, sucky education, etc.; your spouse/fiance has a job that needs a license, such as a doctor, and it would be hard for them to get that license in your country; your spouse/fiance has job training/degree/etc that would only be useful in the US, such as a tax consultant; your country has a bad economy; your spouse/fiance has a relative who they occasionally help out financially, or who they might need to help out physically in the near future.

POOR examples of hardship: your country has high unemployment or crime; your spouse/fiance has a lot of debt they need to pay off; spouse/fiance is depressed but has not been diagnosed by a professional; spouse/fiance's parents are getting old.

Your waiver packet should include the I-601 form, a hardship letter explaining why your spouse.fiance would suffer extreme hardship if you were denied entry, and supporting documents to prove those reasons for extreme hardship.

Depending on where you are from, the waiver approval can take a long time. You will get better results if you are with a US citizen than with an LPR, but whether you are a fiance or spouse does not make any difference. The typical waiting period for a US citizen waiver is a year. However, if you're from Mexico, you're lucky! The consular office in Ciudad de Juarez, Mexico (across the border from El Paso) has a pilot program. This speeds up the process for waivers. If you go through the pilot program, then you can schedule an appointment to file your waiver through a system called Infopass, and can schedule an appointment for two days or more after your first interview. At this appointment, you will submit your waiver packet for review ($545). If your waiver is clearly approvable, then you get your visa that same day. If it's not, then you have to get back in line and wait for approval, which will take a year or so. If it's not clearly approvable, it's a good idea to send more evidence.

If you're not from Mexico, then at your first interview you will be told when and where to file for your waiver, and you will be approved and denied within two months to a year and half, depending on the backlog in the country you're from.

Once you have your visa, you're done if you filed the I-130. If you filed the I-129, then once you come to the US you have three months to get married and file for adjustment of status. If you filed both the I-130 and the I-129, then you just adjust your status right away. You can't work legally until you have adjusted your status. Okay, actually, you're not done yet. Once you are in the country and married, you will be on a conditional visa until you have been married for two years. When your two year anniversary is coming up, you will need to file an I-751 to change that to a permanent green card.

Scenario 2: I entered legally, but overstayed.

Entering legally means you came here on a valid visa. Even if you came here with a tourist visa, you are considered to have entered legally. If you came here fraudulently, such as if the tourist visa you came in on was under someone else's name, then you are still considered an overstay. Lucky for you, your process will probably be easier than that of someone who entered without inspection, and you will be able to adjust your status in the US.

Hi There,

Thank you so much, I think it has all I need to know, very happy with it by the way, I'm Ralph, I was born in new Zealand and moved Australia in 2005, had travel in UK Europe, stayed and work in Indiana for a year
then went back home to Australia.


nathanialexa 02-14-2016 10:22 PM

Re: Legalization and Immigration Options FAQ
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